Donna Fraiche and David Gevertz Discuss Ebola in Wolters Kluwer Health Law Daily

November 19, 2014

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In this Wolters Kluwer Health Law Daily article, Donna Fraiche and David Gevertz discuss the rights to privacy for individuals under the Health Insurance Portability and Accountability Act (HIPAA) versus the rights of journalists to report about these individuals as well as the rights of health workers relating to Ebola.

Donna Fraiche noted that "institutions may not divulge the identity of any patient or any personal health information [without express written consent]. Guidance from CDC suggests, however, patient or family members authorized to do so, may divulge whatever they wish subject to other protections at law, such as defamation or libel. A hospital has a statutory duty to protect the privacy rights of its patients despite the nature or type of disease. Only minimally necessary information for health care needs can be accessed and transmitted—and only on a 'need-to-know' basis; however, without written consent, certain public health information can be released to public health authorities 'legally authorized to collect and receive this information' [42 C.F.R. sec. 164.501]. State or local governmental authorities may also address disclosure exceptions. Those disclosures that are 'authorized by law' under the public health exception to public health agencies are broadly interpreted." Fraiche added that the balance between legitimate public purpose disclosure and nondisclosure is founded in the public health concern of why and how this information is to be used.

David Gevertz pointed out that the Occupational Safety and Health Administration (OSHA) "offers limited protections to employees who refuse to perform a job if they believe in good faith that they are exposed to an imminent danger. The level of exposure necessary to qualify as an 'imminent danger' has not yet been defined. Similarly, the National Labor Relations Act (NLRA) allows unionized employees to stop work where they act in good faith to protect their health because of the existence of an 'abnormally dangerous condition.' While this phrase also has not been defined, it is likely that the National Labor Relations Board would protect a reasonably grounded refusal to work as a protected activity, thus shielding the employee from disciplinary action."

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